The NYT reports:
An affirmative-action program at the University of Texas at Austin that takes applicants’ race into account was unnecessary because the campus had achieved a “critical mass” of minority students, lawyers for the white applicant who sued the university told a federal appeals court here on Wednesday in a case with high stakes for the future of race-conscious admissions policies at public colleges and universities.
University lawyers denied a critical mass of underrepresented students had been reached. They said the institution was entitled to supplement its race-neutral admissions policies with ones that take race into account to achieve diversity. But the reaction of the appeals judges, who expressed skepticism at times about the manner in which the university applied race-conscious decisions and the university’s abstract definition of “critical mass,” illustrated the complex path for the Texas flagship university, as it tries to show that its admissions program was necessary.
Bert Rein, the lawyer for the white applicant, Abigail Fisher, said the university had no numerical standards to determine when its student body was sufficiently diverse. “They have no metric,” he said. “ ‘We know it when we see it.’ That’s the university’s position.”
The lawyers for Ms. Fisher, the university and minority student groups appeared before the United States Court of Appeals for the Fifth Circuit on Wednesday to sort through a tangle of new legal issues raised by the Supreme Court in June. The Supreme Court sent the case back to the Fifth Circuit, instructing it to apply a greater degree of scrutiny to the university’s race-conscious admissions program.
The decision, while generally upholding the use of race as a factor in the program, jeopardized the future of it at the same time, by instructing courts to use tougher standards and to verify that race-neutral alternatives were not available to the university.
